Opinion
3154/13
05-29-2018
The PEOPLE of the State of New York v. Kareem ABDUR–RAZZAQ, Defendant. The People of the State of New York v. Lemuel Skipper, Mahogany Randolph, Defendants.
Assistant District Attorney Meagan Powers, Assistant District Attorney Lauren Di Chiara, Assistant District Attorney Stephen Knoepfler, Bronx County District Attorney's Office, 198 East 161st Street, Bronx, N.Y. 10451 Abraham Mayers, Esq. (Attorney for defendant Lemuel Skipper), 30 Wall Street, 8th floor, New York, N.Y. 10005, 212–227–9220, William Schwarz, Esq., 97 Spyglass Hill Road, Hopewell Junction, New York 12533, (845) 592–2301
Assistant District Attorney Meagan Powers, Assistant District Attorney Lauren Di Chiara, Assistant District Attorney Stephen Knoepfler, Bronx County District Attorney's Office, 198 East 161st Street, Bronx, N.Y. 10451
Abraham Mayers, Esq. (Attorney for defendant Lemuel Skipper), 30 Wall Street, 8th floor, New York, N.Y. 10005, 212–227–9220, William Schwarz, Esq., 97 Spyglass Hill Road, Hopewell Junction, New York 12533, (845) 592–2301
Steven Barrett, J.
"If you want to control their bodies, you need to control their minds "
(Man, The Deuce, HBO, S:1, E:8, My name is Ruby)
Before the Court are two separate sex trafficking indictments. In each case the People have notified defense counsel of their intention to call an expert witness regarding trauma bonding between sex traffickers and their victims and the coercive control techniques utilized by traffickers in order to explain certain paradoxical conduct of the victims. Each defendant has separately moved to preclude the expert's testimony. Because this Court found no written case where a trial or appellate court in New York has ruled on this issue, and because the Court believed that the theory of trauma bonding to explain the behaviors of prostitutes and pimps may involve a novel scientific theory whose general acceptance had not yet been ruled upon, the Court ordered a Frye hearing. Having now completed the hearing and reviewed all of the evidence and submissions of the parties, for the reasons set forth below, each defendant's motion is denied and the proffered expert testimony will be allowed at each defendant's trial.
Throughout this opinion the Court has used the terms sex traffickers and pimps as well as sex workers and prostitutes interchangeably. In addition, in compliance with Civil Rights Law 50–b, the names of the victims have been replaced with their initials for purposes of publication.
People v. Skipper and Randolph
Defendant and co-defendant, Mahogany Randolph are charged, having acted in concert, with kidnapping in the first degree, aggravated sexual assault in the first degree, sex trafficking and related counts. The People presented legally sufficient evidence to the Grand Jury establishing that beginning in April 2015, defendant and C.Y., who was then 26–years–old, met on social media and began what she perceived as a consensual, intimate relationship. Between June 29, 2015 and July 17, 2015, C.Y. represented to defendant and co-defendant Randolph that she would engage in prostitution, did so, and provided the proceeds to them. The evidence further established that, between July 18, 2015 and July 22, 2015, defendant and co-defendant sexually assaulted C.Y. by inserting a broomstick in her anus and vagina, physically assaulted her by punching her in the face and head with a cane and threatened to kill her. During this four day interval, notwithstanding the violence inflicted upon her, C.Y. continued to engage in prostitution on behalf of defendant and co-defendant and did not attempt to flee the location where she was being held by defendant and co-defendant. In addition, the People aver that in March 2015, defendant and co-defendant Randolph began a relationship that evolved into a pimp-prostitute relationship and that notwithstanding the fact that defendant assaulted her, Randolph engaged in prostitution on behalf of defendant and recruited other women to perform sex work on his behalf. (See post-Frye hearing Memorandum of Law at p. 44.) Moreover, the People aver that both before and after Randolph was arrested she lied for defendant's benefit and attempted to protect him from prosecution by taking the blame for his actions. (See post-Frye Memorandum of Law at p.44.)
Ms. Randolph has not joined in the instant motion to preclude.
People v. Abdur–Razzaq
Defendant stands indicted having been charged with sex trafficking, assault in the third degree, strangulation in the second degree, abortion in the second degree and related charges in connection with his actions towards then seventeen-year-old M.N. The evidence presented to the Grand Jury established that beginning in mid-February 2013, defendant and M.N., who lived in the same apartment building as defendant, began an intimate relationship. Shortly thereafter, M.N. agreed to defendant's request to post an ad on Backpage.com and engaged in two sex acts for money. M.N. gave all of the money from the sex acts to defendant, and defendant gave her back a portion to pay her cell phone bill. After those two sex acts, M.N. told defendant she no longer wanted to engage in sex work. Defendant then punched her in the face and stomach, threatened to expose the fact that she had engaged in prostitution, and threatened to harm her physically. Between March 2013 and June 9, 2013, M.N. continued to engage in paid sexual acts on behalf of defendant and continued to have sexual relations with him despite the fact that she had been repeatedly punched, choked and threatened by him. During this period, defendant arranged for the performance of sex acts by M.N. and set the prices for these acts, and M.N. gave him all the money that she earned. In return, defendant gave her money to pay her cell phone bill and to get her hair and nails done, and he would buy her food and marijuana. M.N. referred to defendant as "Daddy." Between May 20, 2013 and May 24, 2013, M.N. informed defendant that she was pregnant. Defendant responded that she needed to get an abortion. When M.N. refused to do so, defendant punched her in the abdomen several times causing M.N. to miscarry the fetus. Throughout this time period, defendant went to work each day at a law firm.
On June 9, 2013, M.N's family discovered that she had been engaging in prostitution and that she had been advertised on Backpage. They contacted law enforcement, which resulted in defendant's eventual arrest and indictment on the instant charges. Notwithstanding a temporary order of protection requiring him to stay away from M.N., defendant and M.N. resumed a sexual relationship and M.N. recanted her Grand Jury testimony.
After M.N. recanted to defendant's lawyer, prosecutors contacted her and she admitted to them that her recantation was false and her Grand Jury testimony was true.
On September 11, 2017, this case was sent out to another court part for trial. The People provided the court with a witness list that included Dr. Chitra Raghavan, who was proffered as an expert in traumatic bonding and coercive control in the context of sex trafficking. When defense counsel moved to preclude such testimony and requested a Frye hearing, the trial court sent the case back to this Court to determine whether such evidence would be admissible at trial. After reviewing the submissions of the parties, on November 30, 2017, this Court ordered a Frye hearing.
Because defendants Skipper's and Randolph's case were pending before this Court and the People expressed their intent to call Dr. Raghavan as an expert in trauma bonding and coercive control at their trial, the Court consolidated Skipper's case with the Abdur–Razzaq case for purposes of this hearing, as they both presented the same Frye issue with respect to the admissibility of the proferred testimony of Dr. Raghavan.
The Frye Hearing
"I do the best job I can do to explain it, but there are many people who just will never understand or believe that one can be so totally controlled by other people that they don't even have to have them standing right there next to them any longer with a gun directly to their head. (Patty Hearst, The Radical Story of Patty Hearst, CNN, E:6, The Verdict)
The Frye hearing began on December 20, 2017 and three witnesses testified on behalf of the People—Dr. Chitra Raghavan, Dr. William Foote, and Dr. Kimberly Mehlman–Orozco. Dr. Raghavan is a tenured professor of forensic psychology at John Jay College, whose research, publications, and teaching have focused on trauma and coercive control in the contexts of domestic violence, sexual assault and harassment, and labor and sex trafficking. Dr. Raghavan is the Director of the Forensic Mental Health Counseling Master's Program at John Jay, which trains therapists, and she designed a program for master degree students who seek to specialize in victim services. Dr. Raghavan has been deemed an expert in the areas of sex trafficking and intimate partner violence in New York State courts and in Federal court and has also trained lawyers and judges who specialize in sex trafficking cases with respect to trauma bonding and coercive control. Dr. Foote is a forensic psychologist in private practice. Dr. Foote's clinical practice focuses on treating patients for trauma and he has conducted numerous evaluations of, and conducted research and published journal articles with respect to, victims of sexual abuse, particularly in the context of clergy and teacher abuse of students and interfamilial sexual abuse. Dr. Mehlman–Orozco is a researcher who has studied and written extensively on human trafficking. She has also testified as an expert witness in sex trafficking. In addition to the testimony of these three experts, numerous scholarly journal articles and books and other documents on trauma bonding and coercive control were received in evidence.
All three of the People's experts testified credibly; however, the Court found that the testimony of Dr. Raghavan was the most essential and relevant exposition of the scientific analysis that underlies the psychological theory here presented. Dr. Raghavan not only demonstrated scholarship and in-depth knowledge and experience in the field of trauma bonding and the use of coercive control as applied in the area of sex trafficking, but her testimony was free of bias and she was extremely articulate, answering often complex and sometimes convoluted questions with aplomb and in a clear and understandable way. She demonstrated conclusively the validity of the established applications of the theories of trauma bonding and coercive control and that extending these principles to the novel context of sex trafficking is warranted to explain scientifically the anomalous behavior of prostitutes within the prostitute/pimp relationship.
The testimony of the three witnesses at the hearing established that trauma bonding is the strong emotional attachment that forms between a victim and an abuser as a result of chronic interpersonal trauma in which the victim is strongly dependent on the abuser based on underlying fear. According to the witnesses, trauma bonds are formed when three main conditions are met: 1) the existence of an imbalance of power between the abuser and the victim; 2) the creation or maintenance of the power imbalance through the use of certain control tactics; and 3) a schedule of intermittent reward and punishment that the abuser metes out in the course of the relationship. Coercive control is the use of various tactics by an abuser to strip the abused target of his or her autonomy and liberty, and to create or maintain a power imbalance. Coercive control tactics include intimidation, deprivation, micro-regulation, manipulation, blackmail, degradation, isolation, or perceived isolation and are frequently tailored to the particular vulnerabilities and needs of the victim. For example, a pimp may recognize the underlying fundamental needs of a prostitute, whether that is a place to sleep or a sense of family or the desire to build a future together, and will then exploit those needs to create an imbalance of power that removes her from her social network or support system. Isolation or perceived isolation of the victim by surrounding the victim with people who are allied with the perpetrator is a particularly important control tactic that helps to form the traumatic bond, as it both prevents the victim from reporting abusive conduct and leads the victim to negotiate with her abuser to end the abuse.
See Exhibit 2, Evan Stark, Coercive Control: The Entrapment of Women in Personal Life (2007). Interestingly, the Court notes that Stark was recently cited in another context to explain why allegedly abused women may stay in a relationship, notwithstanding the abuse. See The New Yorker, Jane Mayer and Ronan Farrow, Four Women Accuse New York's Attorney General of Physical Abuse, May 7, 2018.
According to the witnesses, as a result of the use of these tactics, a cycle begins where the victim, in an attempt to form a human connection with her abuser, seeks to appease the abuser. The abuser then uses intermittent, arbitrary reward and punishment, which causes the victim to submit to the abuser. Over time, the victim's appeasement and submission to the abuser becomes second-nature and internalized. The victim compartmentalizes her thoughts and adopts the worldview of the abuser. Once the abuser has established dominance and the traumatic bond is forged, he can diminish the frequency and severity of his coercive control techniques and use of intermittent reward and punishment. The result of the abuser's use of coercive control tactics is that the victim becomes afraid, needy, and dependent on the abuser. The victim even comes to deify the abuser and see him as omnipotent, better than anyone she has ever been with, and she feels honored to be in the relationship.
These tactics and the resulting traumatic bond with the abuser give rise to paradoxical, incongruous behavior by the victim. The victim may not leave the abusive situation, may return to the abusive situation, or may delay reporting the abuser to law enforcement. The victim also may defend the abuser, downplay the treatment she received, testify on behalf of the abuser, recant, lie to protect the abuser, or provide inconsistent responses over time. According to Dr. Raghavan, based on her own research and review of scholarly literature, within specific traumatized populations such as cults, prisoners of war, battered spouses, and sex trafficking victims, trauma bonding occurs in fifty percent of the victims (T:136).
See also Exhibit 10, Chris Cantor and John Price, Traumatic Entrapment, Appeasement and Complex Post–Traumatic Stress Disorder : Evolutionary Perspectives of Hostage Reactions, Domestic Abuse and the Stockholm Syndrome , 41 Australian & New Zealand J. Psychiatry 377 (2007).
In addition to defining trauma bonding and coercive control, Dr. Raghavan went on to provide a brief overview of the history of trauma bonding research. According to Dr. Raghavan, researchers first began to notice trauma bonding though it hadn't yet been defined as such in the post WW II period, when psychoanalysts began observing that some Holocaust death camp survivors had identified with their prison guards. Then, in the early 1970s, after a bank robbery in Stockholm where four hostages were kept captive and tortured but then refused to testify against their captors, the term Stockholm Syndrome was first utilized to describe the traumatic bonds formed between captors and captives. Dr. Raghavan then briefly described another infamous case of Stockholm syndrome that involved the 1974 kidnapping of Patty Hearst, when she was kidnapped and treated brutally by the "SLA," but grew to love and identify with them and ultimately joined them in the commission of several violent crimes.
Much of Dr. Raghavan's testimony is mirrored in her peer reviewed journal article which was received in evidence as Exhibit 15, Trauma-coerced Bonding and Victims of Sex Trafficking: Where do we go from here? , 17(2) International Journal Emergency Mental Health and Human Resilience 583 (2015).
After this brief historical overview, most of Dr. Raghavan's testimony was devoted to a chronological overview of the major research studies, peer-reviewed journal articles, and books concerning trauma bonding and coercive control across a variety of contexts, including her own research on these topics in the area of sex trafficking. Dr. Raghavan began this walk through the literature in the area of intimate partner violence, which was originally known as battered woman's syndrome. According to Dr. Raghavan, the term battered woman's syndrome was first utilized in 1979 by Lenore Walker in her highly influential book, The Battered Woman , where she first observed that the common thread amongst the 120 victims of domestic abuse that she had interviewed was the psychosocial factors that bonded these women to their batterers. In 1981, Don Dutton and Lee Painter coined the term trauma bonding in their oft-cited, groundbreaking journal article, Trau matic Bonding: The Development of Attachments in Battered Woman and Other Relationships of Intermittent Abuse, which they followed with a longitudinal study involving 50 women who were physically abused and 25 women who were emotionally abused who had recently left their abusers. This later study provided empirical, quantifiable support for their 1981 theory that intermittency of abuse is a strong predictive factor in the formation of traumatic bonds, chief among their findings was the existence of a strong correlation between abuse intermittency/unpredictability and the strength of emotional attachment between abuser and victim.
See Exhibit 6. Donald Dutton & Susan Painter, The Battered Woman SyndromeLEffects of Severity and Intermittency of Abuse , 63(4) Am. Jl. Orthopsychiatry 614 (1993).
Dr. Raghavan next reviewed the scholarly literature with respect to trauma bonds and the coercive control techniques that forge them in a wide variety of contexts other than intimate partner violence. She described the work of Harvard professor Judith Herman who coined the term "complex PTSD" in her highly influential book, Trauma and Recovery, and corresponding peer-reviewed journal article. Complex PTSD arises when one experiences a prolonged or chronic trauma that results in changes in the way one regulates emotions and causes difficulty in relationships. In both her book and article, Dr. Herman cites Dutton and Painter and compares the trauma bonding that occurs between a battered woman and her abuser to that of hostages and their captors and religious cult leaders and their followers. According to Herman, in all three contexts the victim is isolated and becomes increasingly dependent upon the perpetrator, not only for survival and basic bodily needs, but also for information and emotional sustenance. In these relationships, the repeated experience of terror and reprieve often results in a feeling of intense, almost worshipful dependence upon an all-powerful godlike authority. The victim may live in terror of his wrath, but may also view him as the source of strength, guidance, and life itself. Notwithstanding the abuse, the relationship may take on an extraordinary quality of specialness.Dr. Raghavan also described the findings of Nathalie de Fabrique in her seminal analysis of Stockholm syndrome. De Fabrique conducted a quantitative peer-reviewed study in which she analyzed case histories of FBI files on hostage situations to try to determine what factors led to the formation of a traumatic bond between the captive and the hostage-taker. De Fabrique found that in the hostage context where there is an obvious power imbalance, the most important factors in whether a trauma bond was formed was whether the kidnappers were likable and whether they used intermittent reward and punishment. Lastly, Dr. Raghavan reviewed the work of Joan Reid, whose journal article provides a thorough summary of the empirical and clinical studies of trauma bonding to date in the contexts of Stockholm syndrome, battered woman's syndrome, and child sexual abuse syndrome.
See Exhibits 7 and 8. Judith Herman, Trauma and Recovery: The Aftermath of Violence and Complex PTSD: A Syndrome in Survivors of Prolonged and Repeated Trauma, 5(3) Journal of Traumatic Stress 377 (1992).
See Exhibit 9, Nathalie de Fabrique et al, Common Variables Associated with the Development of Stockhom Syndrome: Some Case Examples , 2(1) Victims & Offenders 91 (2007).
See Exhibit 11, Joan Reid, Contemporary Review of Empirical and Clinical Studies of Trauma Bonding in Violent or Exploitative Relationships , 8(1) International Journal of Psych Research 37 (2013).
With respect to other contexts within which trauma bonding has been identified as a natural occurrence, the testimony at the hearing by Dr. Foote complemented that of Dr. Raghavan. Dr. Foote testified with respect to his clinical experience and research with respect to trauma bonding in the area of child sexual abuse. In his studies of clergy-child abuse, teacher-student abuse and coach-student abuse, where a power imbalance clearly exists, Dr. Foote observed that a trauma bond would form that would cause an abused to return to the abuser when the abuser used control tactics and intermittent reward and punishment.
See also Exhibit 17, William Foote, Psychological Evaluation and Testimony in Cases of Clergy and Teacher Sex Abuse , Forensic Psychology: Advanced Topics for Forensic Mental Health Experts & Attorneys (2006).
After this chronology of trauma bonding research in contexts other than sex trafficking, Dr. Raghavan then testified with respect to the studies and articles written that focused on the traumatic bonds formed between pimps and prostitutes, which is the subject of this Frye hearing. The first such study she described was published in 2007 and was a qualitative study in which 66 individuals were interviewed, which included prostitutes, former prostitutes, vice police officers, social workers and parents of prostitutes. Drawing upon the earlier works of Lenore Walker and Dutton and Painter with respect to battered women, the researchers concluded that the key element that kept prostitutes with their pimps was the fact that many of them continued to feel emotional attachments to the very men who had betrayed and abused them. The authors further concluded that these women were demonstrating a form of trauma bonding akin to that seen in battered women. They wrote:
In this regard, Dr. Mehlman–Orozco's testimony mirrored Dr. Raghavan's testimony.
See Exhibit 12 M. Alexis Kennedy et al., Routes of Recruitment: Pimps' Techniques and Other Circumstances that Lead to Street Prostitution , 15(2) Journal Aggression, Maltreatment & Trauma 1 (2007).
Dutton's description of these dynamics in battered intimate relationships could also describe the prostituted woman's relationship with a lover pimp as, [in both of these relationships one sees] the development of strong emotional ties between two persons, with one person intermittently harassing, beating, threatening, abusing, or intimidating the other. Prostituted women reported having trouble giving up the fantasy of a perfect life that the pimps promised them and thinking that time on the streets was only a detour before their real future together would begin. Some women would never label the man who turned them out as a pimp; to them he is the man they love and they believe that they are showing their love to him by earning money for him. These same women often justified the beatings they regularly receive from their pimps in much the same way as battered women; they reported feeling that they must have deserved the beating. (See Exhibit 12 at 7–9)
Next, Dr. Raghavan described two peer-reviewed studies and journal articles by Joan Reid. The first of these articles was published in 2010 and consisted of 34 interviews of representatives from various organizations and agencies that frequently interact with sex trafficking victims who are minors. Reid concluded that the grooming process used by sex traffickers is a mixture of reward and punishment which is used to produce intense loyalty and trauma bonding to the trafficker. According to the author, these tactics, similar to those associated with domestic abusers, are designed to keep the victims in physical and psychological bondage that becomes so ingrained that the minor will continue to return, defend, and cover for the abuser until the trauma bond is severed. Reid's second study was published in 2016 after she had reviewed the social service provider case files of 79 female minors who had been trafficked. Reid again found the widespread use of coercive control tactics that closely paralleled those previously observed in the context of intimate partner violence, child abuse, hostage situations and cults, which resulted in victims developing strong emotional attachments to their abusers or captors. Thus, Reid warned, the existence of trauma bonding and its lingering impact on victims of juvenile sex trafficking should not be overlooked when responding to and providing mental health treatment to victims. See Exhibit 14 at 505.
See Exhibits 13 and 14, Joan Reid, Doors Wide Shut: Barriers to the Successful Delivery of Victim Services for Domestically Trafficked Minors in a Southern U.S. Metropolitan Area , 20 Women & Criminal Justice 147 (2010) and Joan Reid, Entrapment and Enmeshment Schemes Used by Sex Traffickers, 28(6) Sexual Abuse: A.J. Res. And Treatment 491 (2016).
In addition to the extensive research described above, to further establish the widespread acceptance by psychologists of the occurrence of trauma bonding and the use of coercive control tactics by sex traffickers, the People introduced into evidence a 2014 report by the American Psychological Association Task Force on Trafficking of Women and Girls and a 2016 pamphlet put out by U.S. Department of Health and Human Services, Look Beneath the Surface . Both of these documents describe the coercive control tactics used by traffickers and the traumatic bonds that may form between pimps and prostitutes. See Exhibits 24 & 25.
Based upon all of these studies on trauma bonding and coercive control, as well as their own experience and research, all three of the People's experts opined that these concepts are generally accepted in the context of sex trafficking by the community of psychologists who specialize in trauma and that they provide a valid explanation for the often anomalous, counterintuitive behavior of victims of sex trafficking. Neither defendant called their own expert to offer a contrasting opinion.
The Applicable Law
With respect to expert testimony regarding new or novel scientific theories or techniques, New York still adheres to the Frye test of general acceptance by the relevant scientific community. See People v. Wesley , 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994). Once this threshold determination is made, the Court also must decide whether the proffered expert testimony is beyond the ken of the typical juror and will aid such juror in reaching a verdict. See People v. Taylor , 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131 (1990). The Frye test asks not whether a particular procedure or theory is universally endorsed, but whether the analytical theory and techniques, when properly performed, generate results accepted as reliable within the scientific community. See People v. LeGrand , 8 N.Y.3d 449, 457, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007). Further, this test emphasizes counting scientists' votes, rather than verifying the soundness of a scientific conclusion. Id.
The issue of whether expert testimony regarding traumatic bonding and coercive control in the context of the pimp/prostitute relationship satisfies the Frye standard for admission is a matter of first impression in New York. However, the clear trend of recent decisions has been to permit expert testimony concerning complex psychological and social phenomena. See People v. Spicola , 16 N.Y.3d 441, 460–65, 922 N.Y.S.2d 846, 947 N.E.2d 620 (2011). For example, expert testimony regarding battered woman's syndrome has been deemed admissible since 1985 when an esteemed colleague first determined after a Frye hearing that such evidence had gained substantial enough scientific acceptance to warrant admissibility, and that such testimony would assist a jury in understanding "the unique pressures which are part and parcel of the life of a battered woman," and would enable the jury to "disregard their prior conclusions as being common myths rather than informed knowledge." See People v. Torres , 128 Misc.2d 129, 134, 488 N.Y.S.2d 358 (Sup. Ct. Bx. Co. 1985) (Bernstein, J.); see also People v. Turner , 143 A.D.3d 582, 40 N.Y.S.3d 369 (1st Dept. 2016) ; People v. Jackson , 133 A.D.3d 474, 20 N.Y.S.3d 352 (1st Dept. 2015) ; People v. Byrd , 51 A.D.3d 267, 855 N.Y.S.2d 505 (1st Dept. 2008) ; People v. Ellis , 170 Misc.2d 945, 650 N.Y.S.2d 503 (Sup. Ct. NY Co. 1996).
Similarly, for many decades courts have allowed expert testimony with respect to rape trauma syndrome and child sexual abuse accommodation syndrome. In People v. Taylor , supra , 75 N.Y.2d at 288–89, 552 N.Y.S.2d 883, 552 N.E.2d 131, in allowing experts to testify about rape victims' counterintuitive behaviors, the Court of Appeals was satisfied that this type of evidence had been generally accepted in the relevant scientific community and that it would aid a lay juror by dispelling common misconceptions regarding the ordinary responses of rape victims. Likewise, In People v. Spicola , supra , 16 N.Y.3d at 465, 922 N.Y.S.2d 846, 947 N.E.2d 620, in allowing experts to testify about the incongruous behaviors of child sexual abuse victims, the Court of Appeals rejected defendant's attack on the scientific reliability of child sexual abuse accommodation syndrome and found that such evidence would aid the jury by explaining behaviors of child victims that might be puzzling to them. See also People v. Carroll , 95 N.Y.2d 375, 718 N.Y.S.2d 10, 740 N.E.2d 1084 (2000) ; People v. Diaz , 20 N.Y.3d 569, 965 N.Y.S.2d 738, 988 N.E.2d 473 (2013) ; People v. Williams , 20 N.Y.3d 579, 964 N.Y.S.2d 483, 987 N.E.2d 260 (2013).
Although the Court is unaware of any New York case addressing the admissibility of expert testimony regarding trauma bonding and coercive control to explain the behavior of the victims of sex trafficking, a number of federal courts have done so under the less stringent Daubert standard for admission of expert testimony. In particular, the United States Court of Appeals, D.C. Circuit, ruled that expert testimony on the pimp/prostitute subculture, the modus operandi of pimps, and the nature of the relationship between pimps and prostitutes was admissible as its relevance outweighed any prejudice to defendant. United States v. Anderson , 851 F.2d 384, 393 (D.C. Cir. 1988). Similarly, in finding admissible expert testimony regarding the relationship between prostitutes and pimps, the Ninth Circuit opined that the pimp/prostitute relationship is not the subject of common knowledge and that a trier of fact who is uninformed about the relationship would be unprepared to assess the veracity of a victim testifying about prostitution. United States v. Taylor , 239 F.3d 994, 998 (9th Cir. 2001) ; see also United States v. King, 703 F.Supp.2d 1063, 1075 (D. Hawaii 2010) (after a Daubert hearing, the court found that expert testimony regarding pimp/prostitute dynamics, including common ways sex traffickers use force and control over the victim, could aid the jury in understanding how prostitutes could be victims of fraud, force or coercion rather than be willing participants with free will to exit these situations).Applying these principles of law to the evidence presented at the hearing leaves no doubt that the proffered testimony of Dr. Raghavan is admissible at the upcoming Skipper/Randolph trial and the Abdur–Razzaq trial. Initially, the hearing testimony and evidence established to the Court's satisfaction that the theories of trauma bonding and coercive control are well established in both the psychological and legal communities. The People have demonstrated through Dr. Raghavan's testimony and the numerous peer-reviewed journal articles in evidence at the hearing that all three of the elements inherent in the forging of traumatic bonds—power imbalance, use of control tactics, and meting of intermittent rewards and punishment—that are present in cases of intimate partner violence, child sex abuse, and kidnapper/hostage situations, are present in cases in which sex trafficking is alleged. Thus, it is both logical and reasonable to extend the principle of trauma bonding, which has been generally accepted to explain anomalous behavior in these other contexts, to explain the anomalous behavior of victims of sex trafficking. Therefore, the Court concludes that the underlying, well established principles are fully applicable to sex trafficking, that this application, though novel, emerges from adaptation and extension of these principles, and that the proffered testimony is admissible in a sex trafficking case based upon the existing precedent cited above relating to, inter alia , battered woman's, rape trauma, and child sexual abuse accommodation syndrome evidence. See People v. Foster–Bey , 158 A.D.3d 641, 67 N.Y.S.3d 846 (2d Dept. 2018) (expert testimony regarding LCN DNA testing and the FST are admissible because they are not novel scientific techniques and also are generally accepted); People v. Gonzalez , 155 A.D.3d 507, 65 N.Y.S.3d 142 (1st Dept. 2017).
To the extent that the Court could have reached this conclusion based upon the pre-hearing submissions of the parties, the Frye hearing was unnecessary. See People v. Garcia , 39 Misc.3d 482, 963 N.Y.S.2d 517 (Sup. Ct. Bx. Co. 2013) (Iacovetta, J.)(no Frye hearing required regarding admissibility of expert testimony regarding LCN DNA testing and the FST because not new or novel theory); People v. Smith , 191 Misc.2d 765, 743 N.Y.S.2d 246 (Sup. Ct. NY Co. 2002) (no Frye hearing required regarding expert testimony regarding eyewitness identification because not new or novel theory). Of course now that the Court has conducted a Frye hearing, courts of coordinate jurisdiction are free to accept or reject this court's conclusions without duplicating its efforts. See People v. Foster–Bey , supra ; People v. Gonzalez , supra .
Moreover, the hearing evidence also established that trauma bonding and coercive control are scientific theories that provide the most logical and persuasive explanation for often paradoxical behaviors of victims of sex trafficking, and have gained substantial and preeminent scientific acceptance to warrant admissibility. Indeed, the testimony of the People's three expert witnesses and the substantial body of academic empirical and analytical literature in evidence clearly demonstrate that trauma bonding occurs between many pimps and prostitutes. Thus, the People have satisfied their burden of establishing general acceptance of these theories within the relevant scientific community. See People v. Middleton , 54 N.Y.2d 42, 49–50, 444 N.Y.S.2d 581, 429 N.E.2d 100 (1981) (expert testimony admissible where general acceptance shown by virtue of journal articles that demonstrate a majority of the experts in the field accept and approve the procedures and that all of the sister state and federal courts have accepted the reliability of the procedures).
Given that the Frye test only requires general acceptance and not universal endorsement, the fact that some psychoanalysts may still cling onto some other plausible explanation, such as the Freudian theory of masochistic behavior, to explain the aberrant behavior of some prostitutes does not warrant a different conclusion.
To the extent that Court could have reached this conclusion based upon the journal articles and precedents cited in the People's pre-hearing submissions, the Frye hearing was unnecessary.
Moreover, as in the cases cited above, expert testimony pertaining to trauma bonding and coercive control tactics used by sex traffickers would aid the average juror in understanding the anomalous behavior of victims of sex trafficking. As with rape victims and child sex abuse victims, the hearing evidence established that victims of sex trafficking, who often endure daily physical, psychological, and sexual abuse inflicted by their pimp, often engage in counterintuitive conduct—such as staying with and not leaving their pimp, not reporting or even lying on behalf of their pimp, and professing their love for their pimp. Thus, the Court finds that the proffered testimony is relevant and helpful to explain these behaviors, which might appear unusual to a lay juror, and would help dispel any juror misconceptions regarding how someone would be expected to behave under these circumstances. See People v. Spicola , supra ; People v. Taylor , supra ; People v. Diaz , supra ; United States v. Anderson,supra ; United States v. Taylor , supra .
With respect to the two cases that are the subjects of the instant motions to preclude, the Court believes that jurors would benefit from the specialized knowledge of Dr. Raghavan. With respect to People v. Abdur–Razzaq , the evidence presented to the Grand Jury established that defendant repeatedly assaulted and threatened M.N., yet she continued to engage in a sexual relationship with him and continued to do sex work on his behalf. Further, when defendant was faced with criminal prosecution, M.N. lied and recanted her inculpatory testimony. Thus, Dr. Raghavan's testimony will aid the typical juror in understanding why M.N. did not remove herself from the abusive situation, why she failed to report the abuse earlier, why she continued to engage in prostitution even while defendant was at work and not at home, why she returned to defendant, and why she recanted.
According to the People, in order not to run afoul of the caselaw which prohibits such conduct, Dr. Raghavan has not interviewed any of the parties and has no first-hand knowledge of either case and will not be asked to express her opinion on the credibility of any of the witnesses or on whether any of the victims had actually forged a trauma bond. See People v. Williams, supra ; People v. Diaz , supra . With these strictures in mind, Dr. Raghavan should be forewarned not to read this Court's decision until after she testifies in the above proceedings.
Likewise, in People v. Skipper , the typical juror may question why C.Y. stayed with defendant although she was not physically restrained during the entire period she remained at the location where she was being held. Moreover, should co-defendant Randolph testify, jurors may question why she remained with defendant, why she engaged in prostitution on his behalf, and why, after she had been arrested, she lied on behalf of defendant. Thus, Dr. Raghavan's testimony will help the jurors understand these potentially puzzling behaviors.
Of course any issues regarding the application of the theory of trauma bonding and coercive control to either case may be thoroughly explored through cross examination of Dr. Raghavan or through the use of a defense expert.
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Conclusion
Being satisfied that the proffered expert testimony regarding trauma bonding between sex traffickers and their victims and coercive control tactics utilized by sex traffickers have the required scientific basis for admission, that it is not within the common knowledge of the average juror, and that it is relevant to the two cases at bar, this Court concludes that such expert testimony is admissible in each case. Accordingly, each defendant's motion to preclude such evidence is denied.
This is the decision, order and opinion of the Court.